Father Gets Custody in Surrogate Case : Law: Natural mother loses her bid, while the man’s estranged wife wins visitation rights under judge’s temporary order.


A Superior Court judge Monday denied a surrogate mother’s bid to regain custody of her 7-month-old daughter, instead awarding temporary custody to the baby’s father and visitation rights to the father’s estranged wife.

In a bizarre twist on surrogacy disputes that experts said may set legal precedent, three “parents” are battling for custody of Marissa Moschetta: surrogate Elvira Jordan, her natural mother; Robert Moschetta, her genetic father; and Moschetta’s estranged wife Cynthia, who has no biological link to the child but claims an emotional bond.

Jordan announced to the court for the first time Monday that she wants at least temporary custody now that the couple for whom she bore the child have separated.

“This is not what I intended for her, to be split like this,” Jordan told Orange County Superior Court Judge John C. Woolley.


Woolley refused the request on the grounds that Jordan had signed a document relinquishing her parental rights. That ruling does not prohibit Jordan from seeking permanent custody, however.

Woolley awarded temporary custody to Robert Moschetta but ordered that Marissa be sent to visit Cynthia Moschetta every other weekend.

“There’s been no testimony that the relationship between the child and (Cynthia Moschetta) was other than that of parent and child,” Woolley said. Absent a divorce decree, the judge said, “the relationship of mother and child, father and child, and husband and wife would still exist.”

The Moschettas hired Elvira Jordan to bear a child for them, according to court papers, and Jordan conceived a child with her own egg and Robert Moschetta’s sperm in November, 1989.


Robert Moschetta says in court papers that in April, 1990, before the baby was born, he told both his wife and Jordan that his marriage was in trouble, and entered counseling.

Marissa Moschetta was born on May 28, 1990, and immediately handed over to the Moschettas. On Nov. 30, Robert Moschetta left his wife of 10 years, moved from their Santa Ana home to a house in Lakewood, and took the baby with him.

In December, Cynthia Moschetta filed suit against her husband and Jordan, seeking custody of the child. Her husband countered in his legal documents that Cynthia’s “only legal relationship with this child was as a stepmother for five short months,” and that he should be given sole custody.

Cynthia Moschetta testified that she took a 2 1/2-month maternity leave to care for Marissa, and considered herself the child’s mother. She broke into tears on the witness stand as she described feeding and caring for Marissa, and having the baby fall into a contented sleep in her arms.

“Even if I’m not her biological mother, she was my baby, and she is my baby now,” she said, sobbing.

The Moschettas agreed that they shared parenting duties about equally.

But Robert Moschetta disputed some of his wife’s testimony. He said she had taken only a 6-week maternity leave. He also testified that his wife, while working full time, had spent two nights a week teaching aerobics and a third night per week at a group counseling session.

He also testified that in November, she told him “something to the effect of, ‘Gee, Bob, there’s so many things going on, I don’t know if Marissa knows who I am.’ ”


Cynthia Moschetta heatedly denied the remark. She also testified that she wanted to quit her job in order to spend more time with the baby, but her husband insisted that she continue to work. Since he left, she said, he has allowed her to visit the child only once.

Cynthia Moschetta testified that she has a 30-year-old son, but her lawyer, Leslee J. Newman of Orange, objected to a question about her age. Outside the courtroom, Robert Moschetta’s attorney, Edie Warren of Santa Ana, said Cynthia is 51 and Robert is 35. Both the Moschettas and Jordan declined to speak to reporters.

Cynthia Moschetta testified that she has a doctorate in education, had been a university professor and a registered nurse, is involved in infant and child education, and is a church lector.

The Moschettas’ live-in nanny, Martha Ruiz, who continues to care for the baby, testified that the child was happy and seemed to suffer no ill effects from the couple’s split. Ruiz also testified that Marissa seemed to like both parents equally.

Shortly after the hearing began, Jordan, who has filed no legal papers in the case, entered the courtroom and told the judge she was attempting to hire a lawyer and wanted the record to show “that I am involved in the welfare of my baby.”